It doesn't have to be this way; it doesn't have to be any of these ways. A new, separate inspector general, leading a Department of Public Integrity, would take an increasingly troublesome burden off the back of the Justice Department while avoiding the inherent flaws of the special prosecutor and the independent counsel.
Structurally, to give the inspector general and Department of Public Integrity a critical mass of personnel and ongoing caseload, Congress could begin by transferring into it the Public Integrity Section of the Justice Department, which currently handles federal criminal investigations and prosecutions involving state and local governments. It could also include the inspectors general of each cabinet department, who already conduct civil probes but have something of a checkered record and could probably benefit as well from the institutional cohesion of a department devoted wholly to investigating the government. The department could also be given its own investigative arm, either a new one or one staffed by agents on rotation from the FBI.
Doing so would give the inspector general and Department of Public Integrity the institutional perspective and permanent staff that independent counsels and special prosecutors lacked. Unlike an independent counsel, the inspector general and his or her staff would not be unemployed if they closed their investigation. Their budget would be set by Congress, like any other federal agency, based on the overall annual caseload.
An inspector general and Department of Public Integrity would not be a complete solution — none exists outside the ballot box — to a president bent on thwarting investigations. But because the inspector general would be hired specifically to uphold impartial enforcement of the law against high public officials, presidents would face greater pressures to nominate someone above partisanship and ideology (no Eric Holder, no Jeff Sessions, no John Ashcroft, no Janet Reno). The Senate would owe the president's inspector-general nomination less deference than is customary for cabinet positions (the statute could even be drawn to require 60 votes for confirmation), and there would be greater political consequences for firing an inspector general. Congress could reinforce both the perception and reality of day-to-day independence with a truly radical step: place the headquarters of the department and its head somewhere thousands of miles from D.C.
The inspector general could also be given a power and duty more like that of the cabinet-level inspectors general: to produce a public report at the conclusion of his investigations. Such reports allow for public accountability for misconduct that is not criminal, for exoneration of officials who did nothing wrong, and for oversight and lesson-learning. They also put pressure on investigations to reach an endpoint.
One arguable downside of a truly independent Department of Public Integrity is that, in cases involving state and local officials, it would lose some of the benefits of working with local U.S. Attorney's Offices that know the judges, juries, and other local conditions. For better and worse, prosecutions of state officials has been a major career-builder for politically ambitions U.S. Attorneys, especially blue-state Republicans (think of Chris Christie in New Jersey or Bill Weld in Massachusetts). But a department with institutionally independent leadership need not be hermetically isolated from engaging assistance from local line prosecutors.
"If men were angels," James Madison famously wrote, "no government would be necessary." No system of investigating high officials would be necessary if they were angels, and none is foolproof when they are knaves. But a permanently established inspector general and Department of Public Integrity would be a better way of regularizing the process for such investigations and restoring some level of public confidence in that process.
Commentary by Dan McLaughlin, a lawyer and contributing columnist at the National Review. Find him on Twitter at @baseballcrank.
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